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R(burke) V Gmc Notes

Updated R(burke) V Gmc Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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R(Burke) v GMC [2005] 3 FCR 169

Court of Appeal


C suffered from a condition which was gradually progressive, meaning he would need ATN eventually. He was expected to remain competent until the final stages of the condition. He was concerned that before those finals stages, the GMC guidelines may lead to doctors withdrawing ATN when he wished to continue to receive it no matter than pain and suffering. He sought a declaration that the guidance was incompatible with the ECHR.

Held Lord Phillips MR

  • Munby J equated the best interests test with the wishes of the competent patient

    • He claimed that doctors who have assumed the care of the patient, subject to resource implications,

      • must administer such treatment that the patient has expressed an informed wish for

        • As receipt of such treatment will be in the patient's best interests

    • However, the concept of "best interests" depends very much on the context in which it is used, as indeed does the Bolam test, but neither is of much relevance when considering the situation with which we are concerned

      • It seems to us that it is best to confine the use of the phrase "best interests" to an objective test,

        • which is of most use when considering the duty owed to a patient who is not competent and is easiest to apply when confined to a situation where the relevant interests are medical.

  • Thus, if best interests is an objective test it is apparent that treating a patient in the manner that doctors consider to be in his best interests may be at odds with his wishes.

    • So P who is in desperate clinical need of a blood transfusion and who has no wish to die may, for religious reasons, not wish to receive one although the consequence is almost certain death.

      • Where a competent patient makes it clear that he does not wish to receive treatment which is, objectively, in his medical best interests,

        • it is unlawful for doctors to administer that treatment. Personal autonomy or the right of self determination prevails

    • The corollary does not, however, follow, at least as a general proposition. Autonomy and the right of self-determination do not entitle the patient to insist on receiving a particular medical treatment regardless of the nature of the treatment.

      • In so far as a doctor has a legal obligation to provide treatment this cannot be founded simply upon the fact that the patient demands it. The source of the duty lies elsewhere

  • So far as ANH is concerned, there is no need to look far for the duty to provide this. Once a patient is accepted into a hospital, the medical staff come under a positive duty at common law to care for the patient

    • A fundamental aspect of this positive duty of care is a duty to take such steps as are reasonable to keep the patient alive.

    • Where ANH is necessary to keep the patient alive, the duty of care will normally require the doctors to supply ANH.

      • This duty will not, however, override the competent patient's wish not to receive ANH.

      • Where the competent patient makes it plain that he or she wishes to be kept alive by ANH, this will not be the source of the duty to provide it.

  • In so far as the law has recognised that the duty to keep a patient alive by administering ANH or other life-prolonging treatment is not absolute, the exceptions have been restricted to the following situations:

    • (1) where the competent patient refuses to receive ANH and

    • (2) where the patient is not competent and it is not considered to be in the best interests of the patient to be artificially kept alive

      • It is with the...

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